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The military women and the fight to be equal

#GenderAnd Nation: Delhi HC rules women cannot be denied entry into the Territorial Army

Updated: January 8, 2018 3:30 pm

More than the military establishment and policy makers, the concept of nari shakti in the defence services has been powered by constitutional courts. The Delhi High Court ruling that women cannot be denied entry into the Territorial Army, a unique organisation of volunteers who are otherwise engaged in civil occupation and who receive training and wear the uniform for a few days in year so that they can be called out during national emergencies, is the latest in the same vein.

The induction of women in the military has to come about in a phased manner with due thought and not merely as a sentiment of political correctness. Also, a little more flexibility by the establishment should be at display while opening its doors. The recent decision of the government and the Army Chief regarding induction of women in ranks other than Commissioned officers, seems to be an apt step.

Initially inducted in the defence services only as Short Service Commissioned Officers with five-year initial terms, extendable to a maximum of 14 years, it was the Delhi High Court in 2010 which directed the government to consider them for permanent commission. The government of the time chose to challenge the verdict in the Supreme Court where it still remains pending. Since a stay was not granted by the apex court, women officers continue to serve on the strength of the High Court decision. The stand of the official establishment wherein women were thought fit to serve for 14 years but not 20 years or more which would have entitled them to pension, and without any post-retirement occupational guarantee was, to put it softly, not a well-rounded stand. Things have changed since then with the military embracing more progressive policies, but rough edges still remain.

The above apart, women have had to litigate at multiple stages for their rights. The Delhi High Court in 2015 ordered the Navy to consider its Short Service Women officers for Permanent Commission but again the verdict was challenged in the Supreme Court. The Punjab & Haryana High Court, in a landmark verdict on pregnancy rights in the military, had held that it was not proper for the Army Medical Corps to reject the candidature of a woman (where married women can join till the age of 45 and there is no training in a military academy) after her selection and asking her to undertake the entire procedure again, only because she happened to disclose that she was pregnant when she reported for duty. The Court opined that forcing a person to choose between a child and her employment had “no place in modern India.” Thankfully, the judgment was implemented without appeal.

What all these cases show is that there’s no easy road for the military women. While some grounds articulated by the establishment, such as in the case of induction of women for frontline combat, may well be valid and open to debate, resisting change sometimes becomes a default reaction. For example, the often repeated phrase ‘what would happen if a woman soldier is captured?’. Well, a soldier is a soldier and the fear of a war crime equally applies to male soldiers. Then the issue of women garnering postings in ‘peace’ areas while leaving tough or ‘field’ postings for men is raised. If true, the answer to this is not resisting the induction of women but ensuring balanced personnel management policies, making it clear that equality is a two-way street and then strictly ensuring the same without fear or favour. These issues are not simplistic. However, a workable solution could be to decide these in a participative manner by study groups involving the defence establishment and also former and current women members of the military with the political executive before finally deciding upon a policy.

There are a few things that could be kept in mind.

Firstly, whenever there is judicial intervention in matters of such policy, the default reaction should not be an appeal out of administrative egotism but introspection and ways to rationalise and harmonise the policy itself to the best extent possible.

Secondly, decisions on women personnel must always be taken after due discussion with stakeholders by involving the military establishment and women members.

Thirdly, regressive policies such as the Coast Guard seeking a certificate from women appointees that they shall not conceive more than twice during service, should be immediately reviewed.

Fourthly, a cue should be taken from the experience of the Police and the Central Armed Police Forces where women have served in exacting circumstances in all ranks without any major hiccup.

These are times of exhaustive churning. Every military of every democracy has encountered vexed questions in this regard. What seemed odd in the days of yore is pretty much a part of regular life today. With the Chiefs of the Defence Services showing maturity in being open about accepting more women in the forces, the Prime Minister also calling for it, and the apex defence political appointment being held by a woman, there could not be a better time to initiate change and to review matters currently sub judice by identifying a meeting point.

(#GenderAnd is dedicated to the coverage of Gender across intersections. Read our entire reportage here)

The author practices at the Punjab & Haryana High Court. He is a Member of the International Society for Military Law and the Law of War at Brussels. The views expressed are his own.